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Office of the Attorney General State of Maryland

*1 Opinion No. 89-017 May 1, 1989

RETIREMENT SYSTEMS--CIVILIAN PARAMEDICS--"FIREMAN'S POSITION"--THE POSITION OF CIVILIAN PARAMEDIC IS NOT A "FIREMAN'S POSITION" AND THEREFORE IS NOT EXCLUDED FROM SOCIAL SECURITY

The Honorable Hilda E. Ford Secretary of Personnel
301 West Preston Street Baltimore, Maryland 21201

Dear Secretary Ford:

You have requested our opinion on whether the position of civilian paramedic in the Baltimore City Fire Department is a "fireman's position." This term is used in a provision of federal law describing the scope of an exclusion from Social Security. In practical terms, if civilian paramedics hold firemen's positions, they are properly to be included in the advantageous Fire and Police Employees' Retirement System.

Our task is to apply this provision of law consistently with the cases and other pertinent materials that have cqnstrued it in the past. It may well be that the scope of the provision is too narrow, in the SBnse that it does not ref_ect the the broadened responsibilities that the City Fire Department has undertaken in recent years. Nevertheless, for the reasons stated below, we are constrained to conclude that the position of civilian paramedic is not a "fireman's position." .l.ENll

IBackground

On January 26, 1988, the City of Baltimore enacted Ordinari_e No.5, which amended its existing Ordinance No. 1156. The objective of this legislation was to transfer paramedics, paramedic assistants, and persons performing substantially similar duties from the Employees' Retirement System ("ERS") to. tl_e Fire and Police Employees' Retirement System ("F & P system"). However, the ordinance imposed a condition: that these employees would be removed from coverage under the federal old age, survi_ors and disability insurance ("FICA") currently provided'to members of the ERS. Ordinance No.5 obliged the Mayor and City Council to request an opinion from the appropriate State or federal agencies that the desired realignment of the retirement programs was legally permissible.

Accordingly, Mayor Kurt Schmoke wrote William Goldsborough, of the State Department of

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Personnel, and asked him to determine whether a paramedic or similar employee could be considered to hold a "fireman's position" and thus be properly excludable from the ERS and includable in the F & P System. As we explain in Part II below, this term is used in the federal law describing the scope of the exclusion. Mr. Goldsborough relayed this request to the United States Department of Health and Human Services, Social Security Administration. Mr. Sandy Crank, Associate Commissioner for Retirement and Survivors Insurance, in turn replied that the scope of the term "fireman's position" was for the State to determine and referred the matter back to Mr. Goldsborough. lEll2l You then referred the matter to this office.

II

Prior Construction of "Fireman's Position"

Prior to 1954, state and local government employees in positions covered by retirement systems were excluded from eligibility for the insurance provided under the Federal Old Age and Survivors' Insurance Act. In 1954 Congress amended the law to include state and local employees covered by a retirement system if a majority of such employees voted in favor of inclusion. 42 U.S.C. _ 418(d). However, Congress retained the exclusion for employees "in any policeman's or firem9-n's position"; they could not vote in any referendum to obtain FICA coverage. 42 U.S.C. __ 418(d) (3) and (d) (5).

*2 In 1958 the City of Baltimore Employees' Retirement System conducted a referendum on whether its members, except those in any policeman's or fireman's position, would be covered under FICA. In order to determine who was eligible to vote in the referendum, the State Division of Social Security asked the Attorney General for an opinion defining the phrase "fireman's position."

This office concluded that the fireman's position exclusion was "applicable only to the employees of a fire department who are engaged primarily in the duty of extinguishing fires and protecting lives. These are firemen in common parlance." 43 Opinions of the Attorney General 300, 302 (1958). Applying this understanding of the term, the opinion concluded that two categories of employees were properly excluded from the referendum as firefighters: "the personnel who combat the conflagration at the scene"; and "the personnel of the Fire Department who are trained, qualified and classified as fire
fighters but are not presently assigned to the fire fighting forces	"	43 Opinions of
the Attorney General at 302-03. Thus, clerical and administrative employees of the Fire Department were to be considered firefighters, provided that they were trained, qualified, and classified as firefighters--even if they were no longer assigned to firefighting forces. lBnl

At approximately the same time that this office was rendering its opinion, the Fire Fighters Association, the union representing employees of the Fire Department, was threatening legal action over the determinations being made by the State Employees' Retirement System and the City as to which Fire Department employees would be subject to

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the referendum. The union took the position that "everybody under the supervision of the Fire Board" should have been considered to have been in firemen's positions. Baltimore Sun, April 30, 1958. The State and City took the position, on the other hand, that no classification other than the firefighter's classification should be excluded from the referendum.

The referendum was conducted and a majority of employees in the ERS voted to be covered by FICA. Certain Fire Department employees who had participated in the referendum contested their inclusion in the ERS and exclusion from the F & P System. They brought suit in the Circuit Court for Baltimore City seeking a judgment that they should have been considered to be in firemen's ,positions. william M. Augustine, et al. v. Mayor and City Council of Baltimore, et al., Docket 1960 A, Folio A/487-58, File No. A-38147.

In an opinion delivered on June 9, 1960, Judge Joseph Allen found that certain Fire Department employees should have been excluded from the referendum. Judge Allen stated tha't "the exclusion applies to every employee of the Fire Department whose services bear a substantial and direct relationship to extinguishing fires or protecting lives and/or property endangered by fires, even though such services are rendered away from the fire scene." Slip. op. at 6. Applying this reading of the term "fireman's position," Judge Allen determined that two employees engaged as high-pressure pump tenders, a machinist who inspected automotive and other motor equipment and attended all multiple alarm fires, and a fire alarm operator responsible for safeguarding lines of communication could be considered to be firefighters. However, clerical and other employees not "proximately and substantially associated with extinguishing fires and/or saving lives and property" were not in firemen's positions. Slip op. at 7.

*3 The Fire Department subsequently requested an opinion from the Baltimore City Solicitor classifying all of the employees of the Fire Department as to whether or not they were to be included within FICA coverage. The City Solicitor demurred and suggested that a suit be filed in order to determine whether to include or exclude the remaining employees of the Fire Department.

The result was another case in the Circuit Co_rt for Baltimore City, George J.W. Merle, et al. v. Mayor and City Council of Baltimore, et al., Docke_ 1960 A, Folio 875, File No. A-40985. Judge Allen, again presiding, determined that two electri_ians who did not respond to the fire scene should not be considered to be in firemen's positions. The affected employees filed a petition to correct the decree and stated that they had neglected to point out earlier that they al'so were required to respond to the fire ground in all second or greater alarm fires. Based upon these additional facts, Judge Allen corrected the original decree and held that the employees were within firemen's positions. lB:H.l

Despite reaching different conclusions, Judge Allen's opinions in Augustine and Merle and this office's opinion differed only slightly in their interpretation of the phrase "in any... fireman's position." Judge Allen stated that every employee "whose services bear

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a substantial and direct relationship to extinguishing fires or protecting lives and property endangered by fires ..." was in a fireman'_ position. The 1958 Attorney General's opinion stated that employees who are "engaged primarily in the duty of
extinguishing fires and protecting lives..." were in firemen's positions. The major difference between the Attorney General's opinion and Judge Allen's ruling was Judge Allen's conclusion that some services performed away from a fire scene, such as tend
high-pressure pumps, also qualified an employee for a fireman's position, because su, services were "necessary function[s] immediately associated with and substantially important to 'extinguishing fires.' " Augustine, slip. op. at 5.

All of the employees discussed in the Attorney General's and the court's opinions
apparently were exclusively devoted to the business of fighting fires, either direct indirectly. They performed no role other than protecting lives and property endange fire. For example, in Merle the two plaintiffs originally were thought to be primar
engaged in the installation and repair of electrical equipment. _ad they performed other duties, they would not have been considered to be'in firemen's positions. Bec, they also had to respond to the fire scene, Judge Allen found that they were acting, firemen. Still, all of their responsibilities, either on-the-scene or in the engine house, were directed toward only one goal: enabling the Fire Department to protect property and lives endangered by fire.

III

Analysis of Paramedics' position

*4 Paramedics, at least those who are not qualified in fire suppression, do not primarily function as firefighters. While the position of paramedic may be "connect, with" the position of firefighter, they are separate and distinct positions.

Statistics provided by the Fire Department show that during calendar year 1988 the
Department's medic units were dispatched to the fire ground on stand-by status on 65occasions. During fiscal year 1988, those medig units responded to 98,885 calls for assistance. Thus, responses to tpe scene of a fire are but _n extremely small fract the total number of responses to calls for assistance performed by paramedics.

These statistics highlight the fact that paramedic services and firefighting are OJ incidentally related to one another. Although paramedics are called upon to assist persons imperiled by fire, they are also called upon to render assistance whenever tJ medical need arises. Paramedics respond to medical emergencies irrespective of the, of the emergency.

In the performance of their respective duties and responsibilities, firefighters aJ civilian paramedics both render services of inestimable value to the community. In
drawing distinctions between the two positions, we do not intend to understate the importance of either. However, the significant differences between firefighters and

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paramedics lead us to the conclusion that the paramedics' positions cannot be considerE to be firemen's positions. The primary duty of a paramedic is to respond to medical emergencies, regardless of their source. In a vast majority of cases, paramedics rendE assistance to victims of emergencies unrelated to fire.

In Judge Allen's phrase, a "fireman" is one who "perform[sJ a necessary function immediately associated with and substantially important to 'extinguishing fires.' " Augustine, slip op. at 5. Conversely, one who performs a function, however important t public welfare, that is not "immediately associated with and substantially important tc fire suppression is not a "fireman." _

This analysis comports with the apparent congressional intent. In 40 Opinions of thE Attorney General 420, 422 (1955), the opinion discussing the "policeman's" position
exclusion, the Attorney General quoted at length from Memorandum 14:F:C from the former Department of Health, Education and Welfare (February 9, 1955). _n that memorandum, tt Department discussed the legislative history of the policeman's exclusion. In an early version of the legislation, the exclusion was recognized as applying to "employees in
positions with functions which might include enforcement of the police power but which were not primarily or exclusively policeman positions." Id. However, as the memoranduIT noted, the provision was redrafted to e_clude services in a "policeman's position." Tn effect of the change was to "narrow the positions subject to the exclusion." Id.

Our conclusion is also bolstered by recently readopted regulations of the Social Security Administration. See 53"Fed.ReG. 23972, 23980 (AuGust 29, 1988). As amended, C.F.R. _ 404.1212(a) provides as follows:
*5 For Social Security coverage purposes under § 218 of the Act, a policeman's or fireman's position is any position so classified under State statutes or court decision Generally, these positions are in the organized police and fire departments o_
incorporated cities, towns, and villages. In most States, a policeman is a member of t "police" which is an organized civil force for maintaining order, preventing and detect crimes, and enforcing laws. The terms "policeman" and "fireman" do not include service
in positions which, although connected with police and firefighting functions, are not policeman or fireman positions.
In other words, the Social Security Administration's current_iew is"_hat a person is n a firefighter simply because the person's work is "connected with" firefighting; the employee must actually function as a firefighter.

To be sure, under a different federal statutory scheme the result would be different. The federal Fair Labor Standards Act exempts "any employee in fire protection activitie from certain of the laws's overtime requirements. 29 JU. S. C. _ _ 207 (k) and ii3 (b) (20) . According to the regulations of the U.S. Department of Labor implementing the exemption the term "fire protection activities" extends to "rescue and ambulance service personne if such personnel form an integral part of the public agency's fire protection activities." 29 C.F.R. _ 553.210(a). These personnel are within the exemption, the regulations elaborate, if they "have received training in the rescue of fire... victim

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or fire fighters ... injured in the performance of their ... duties" and if they "are regularly dispatched to fires	" 29 C.F.R. § 553.215. lEll2l

The City Fire Department's civilian paramedics fit this description. Nevertheless, we do not find it possible to say that the Labor Department's interpretation of its statute, in furtherance of its own specific purpose, can control the interpretation of another statute having a wholly different purpose--particularly in light of the Social Security Administration's recent, narrower construction of "fireman's position."

IV

Conclusion

In summary, it is our opinion that the position of paramedic is not a "fireman's position." lEN1l We regret the result of this opinion_ for it means that a benefit which in fairness ought to be provided to civilian paramedics as a group can less readily be provided. _ However, we are convinced that the better reading of the pertinent language, as it has consistently been construed, leads to this conclusion.

Very truly yours,

J. Joseph Curran, Jr.

Attorney General

David R. Durfee, Jr.

Assistant Attorney General

Jack Schwartz

Chief Counsel Opinions and Advice

lEllll. This conclusion addresses the position of civilian paramedic, as such. Some paramedics, as a result of prior -training or the nature of _heir particular job assignments, might occupy firemen's positions. See note 8 below. We are not able to make case-by-case determinations that might turn on particular facts. Our conclusion is limited to the legal question,presented-- that a person does not hold a fireman's position solely because the person is a civilian paramedic in the Fire Department.

lEN2l. Although federal officials defer to state interpretation of the term, the Social Security Administration's own analysis is pertinent t_ our understanding of-congressional intent. See Part III below.

lENll. This opinion relied heavily upon an earlier opinion, 40 Opinions of the Attorney General 420 (1955), in which Attorney General Sybert discussed the exclusion as it applied to police officers. The earlier opinion analyzed the legislative history of the 1954

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amendments to the Federal Old Age and Survivor's Insurance Act and concluded that the phrase "in any policeman's or fireman's position" was not meant to embrace all persons employed by a police or fire department. 40 Opinions of the Attorney General at 422-23. See Part III below.

lEN1l. In 1963 the then City Solicitor, Francis B. Burch, advised the City of Baltimore that an employee in the position of "instrument mechanic" was not in a fireman's position. Reviewing Judge Allen's decisions in Augustine and Merle, Solicitor Burch found determinative the fact that an instrument mechanic's "primary and sole duties seem to be limited to the installation, inspection, maintenance and repair of mechanical equipment used by the Fire Department ..." and did not include response to the scene of fire. Therefore, the position was not a "fireman's position" and was to be covered by the ERS, not the F & P System.

lEN2l. Our reasoning parallels that of the court in Sosa v. City of Corpus Christi. 739 S.W.2d 397. 403 (Tex.A_p.1987), in which the Texas appellate court held that a city's director of emergency medical services was not a "fireman," within the meaning of that term in a civil service law, because "his duties range much further and encompass many more responsibilities than merely fire-related emergency medical care." (Emphasis in original. )

lEN2l. If they perform comparable rescue activities in connection with crime or accident victims or injured law enforcement officers, they would also fall within the exemption for "law enforcement activities." 29 C.F.R. § 553.211(b).

lENll. This opinion is limited to the question of whether a paramedic position or paramedic assistant's position now covered by the ERS comes within the definition of a fireman's position. It does not extend to any positions that are now a part of the F & P System.

lENEl. A civilian paramedic who, apart from his or her status as a paramedic, has already been certified as a firefighter or who receives appropriate training in fire suppression and who thereafter holds a fireman's position would properly be included in the F & P System.

74 Md. Op. Atty. Gen. 254, 1989 WL 503618 (Md.A.G.)

END OF DOCUMENT

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